People v. Ross

2021 NY Slip Op 04820

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. MICHAEL ROSS, DEFENDANT-APPELLANT.

No. 389 KA 18-01351

Supreme Court of New York, Fourth Department

August 26, 2021

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MINDY F. VANLEUVAN OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.

Appeal by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Christopher J Burns, J.), entered June 19, 2018. The order denied the motion of defendant pursuant to CPL 440.10 to vacate a judgment of conviction.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Erie County, for a hearing pursuant to CPL 440.30 (5) in accordance with the following memorandum: Defendant appeals from an order that denied without a hearing his CPL 440.10 motion to vacate the judgment convicting him following a jury trial, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). We affirmed the judgment of conviction on direct appeal (People v Ross, 118 A.D.3d 1321 [4th Dept 2014], lv denied 23 N.Y.3d 1067 [2014] reconsideration denied 24 N.Y.3d 1122 [2015]) and denied defendant's two subsequent motions for writs of error coram nobis (People v Ross, 151 A.D.3d 1782 [4th Dept 2017], lv denied 30 N.Y.3d 983 [2017]; People v Ross, 129 A.D.3d 1556 [4th Dept 2015], lv denied 27 N.Y.3d 1005 [2016], reconsideration denied 27 N.Y.3d 1155 [2016]).

Defendant made the instant motion to vacate the judgment on the grounds of ineffective assistance of counsel and a denial of his right to counsel related to the alleged failure of Supreme Court to inquire at trial into his request for a substitution of his third assigned counsel (trial counsel). We conclude that defendant is entitled to a hearing with respect to his claim of ineffective assistance of counsel only.

With respect to his claim of ineffective assistance of counsel, defendant contends that trial counsel failed to interview or call two exculpatory witnesses who defendant had identified and who were available and willing to testify. Those witnesses submitted affidavits in which they corroborated defendant's contention that he fired the.22 caliber rifle at issue into the air as warning shots and did not fire directly at the victim. The witnesses also averred that they were willing and able to testify at trial but were never contacted by trial counsel. Defendant also contends that trial counsel failed to inform him that the decision whether he would testify at trial was a decision for defendant, not trial counsel, to make.

As defendant correctly contends, his claim of ineffective assistance of counsel was properly raised on his CPL 440.10 motion inasmuch as it is based on matters outside the trial record (see People v Wilson [appeal No. 2], 162 A.D.3d 1591, 1592 [4th Dept 2018]; see e.g. People v Williams [appeal No. 2], 175 A.D.3d 980, 981-982 [4th Dept 2019], lv denied 34 N.Y.3d 1020 [2019]; People v Dixon, 147 A.D.3d 1518, 1519 [4th Dept 2017], lv denied 29 N.Y.3d 1078 [2017]). Here defendant's submissions on the motion raise factual issues requiring a hearing concerning trial counsel's failure to interview and call the two exculpatory witnesses (see People v Howard, 175 A.D.3d 1023, 1025 [4th Dept 2019]; see also People v Scott, 181 A.D.3d 1220, 1221-1222 [4th Dept 2020]; People v Mosley, 56 A.D.3d 1140, 1140-1141 [4th Dept 2008]), even in the absence of an affidavit from trial counsel (see Scott, 181 A.D.3d at 1221-1222). We thus conclude that defendant is entitled to a hearing on his entire claim of ineffective assistance of counsel inasmuch as" 'such a claim constitutes a single, unified claim that must be assessed in totality'" (Wilson, 162 A.D.3d at 1592), and we therefore...